Tuesday, May 3, 2011

In order to win the election the candidate must make a deal with a dishonest ward boss, involving the granting of contracts for school construction over the next four years. Should he make the deal? … He is extremely reluctant even to consider the deal, puts off his aides when they remind him of it, refuses to calculate its possible effects upon the campaign…. Because he has scruples of this sort, we know him to be a good man. But we view the campaign in a certain light, estimate its importance in a certain way, and hope that he will overcome his scruples and make the deal. It is important to stress that we don't want just anyone to make the deal; we want him to make it, precisely because he has scruples about it. We know he is doing right when he makes the deal because he knows he is doing wrong. I don't mean merely that he will feel badly or even very badly after he makes the deal. If he is the good man I am imagining him to be, he will feel guilty, that is, he will believe himself to be guilty. That is what it means to have dirty hands.

Suppose you are conversing with friends, including Smith and Jones, and you find yourselves discussing moral philosophy. In particular, you are discussing the notion of rights. At one point, Smith says, “Just because you have a right to your property—which entails a right that others not take your property—it doesn’t follow that I may never take your property!”
Jones is perplexed. “What do you mean?” he asks.
Well, says Smith, we can all agree that people have rights, and among these rights is a right to one’s property. I’m an absolutist about this. I believe that everyone everywhere has rights, including this right.”
“OK,” says Jones. “I’m with you so far.”
Smith continues: And if we say that people have a right to their property, we mean something like this: normally, nobody may take their property unless they give them permission to take it.”
“What do you mean by ‘normally,’?” asks Jones.

Jones

When we say that X has a right to his property, we mean, roughly, that everyone should refrain from taking it. But that isn’t quite correct, because rights and other moral considerations can come into conflict. What if there’s a terrible accident and I need to get someone to a hospital? But the only way I can do that is if I just take X’s car—she happened to leave her keys in it. It seems to me that, under the circumstances, I’m in a kind of dilemma, for if I honor X’s right to her property, I will allow this person to die. And surely we can all agree that the importance of preventing the person’s death (she’s a delightful person, I assure you) overrides X’s right to my not taking her car! So, even though I’m in a dilemma in which something’s got to give, it’s pretty clear what ought to “give” here.
“So you’re saying that, under the circumstances, X’s right evaporates into nothing?,” says Jones.
No, says Smith. X, like everyone else, really does have the right not to have her property “borrowed” or molested, and so on. But, there’s a conflict, and something’s got to give. The best thing to do, all things considered, is to violate X’s right in order to save a life. Naturally, we owe it to X to explain ourselves as soon as possible. We really feel bad about having to take her car. But, under the circumstances, that’s what had to be done. It would be different if, say, the only way to save the accident victim is by hurting X in some way. It wouldn’t be right to help the victim by hurting X. But we didn’t do that. We only “borrowed” X’s car.

X

“So X’s right becomes nothing,” says Jones.
Not at all! The fact that we owe her an explanation and even an apology shows that her right does not become “nothing.” It still is what it is, it’s just that life can get complicated, and it became necessary to use her car, to violate her right to her property in a limited way. We didn’t want to do that, but there was no alternative. And we aren’t willing to do just anything, relative to X’s rights, to save the accident victim. But we are willing—regretfully—to violate her right to not have her car used without permission—for the sake of saving an innocent life.
“So you’re saying that her right to her property is not absolute!,” offers Jones.

Accident victim (all better now)

Well, in one sense, yes; in another sense, no. That we have an obligation to her to treat her with respect is, I think, absolute. And, in this case, we’re honoring that, for we resist taking her car, we don’t want to take it. But we feel that we must take it, regrettably, to save a life. And the proof that her right did not become nothing is the fact that we feel the need to contact her as soon as possible and explain and even apologize for what we did. (We might even offer to compensate her in some way.) That’s the proof that her right, though violated, did not “disappear.” It’s still there. We still recognize it. And so X absolutely has a right to her property, her car. But that doesn’t mean that her right is “absolute.” We’re not saying that her right is absolute in the sense that it must always be honored or accorded, no matter what! No. We’re not saying that she has an “absolute” right in that sense. We are saying that, absolutely, she has a right to her property. That is, we should proceed with the idea that her ownership of her property must always be respected, if not accorded, even when it is taken from her, temporarily.
See?

The case of torture

You

I feel very strongly that torture is barbaric and unacceptable. I think it is inhumane and appalling. I always feel this way—i.e., there are no circumstances in which I do not find torture inhumane and appalling. I am, in that way, an anti-torture absolutist.
And yet, in another sense, I am not an "absolutist" about torture. For circumstances are conceivable in which, though one does have that value/perspective, one reasonably judges that the morally best thing to do is to torture someone. If, for instance, terrorists have hidden a nuclear weapon in the city and we have compelling reasons to suppose that it will be detonated in a few hours, and if we have captured one of the terrorists, who refuses to divulge the location of the weapon—it is conceivable that the only prospect of getting the crucial information is in torturing the terrorist. (That this circumstance ever occurs is somewhat controversial, I suppose. This example is Walzer's, essentially.) If we were to do that, we would do it with profound regret. We would be appalled by our conduct. We may find it difficult to live with ourselves having done it. All of this is the "presence" of our rejection of torture; it is our "anti-torture" conviction. And yet (perhaps) we have done the morally right thing, the best that we can do, under these special circumstances, by torturing the terrorist.
I might choose to describe my stance in this way: I am an absolutist about rejecting torture in the sense that I believe that one always has extremely powerful reasons to seek to avoid using torture—i.e., to "reject" torture. Nevertheless, it is at least conceivable that this horrendous circumstance could come about: despite these very powerful reasons not to torture the terrorist, reasons to torture him also exist, and these reasons outweigh the reasons against torture.
I am an absolutist "against torture" in the sense that I believe that there is always a very powerful reason not to torture; but because I recognize the possibility of extreme moral dilemmas—who could deny it?—I am unwilling to say that one must never torture. So, in that sense, I am not an absolutist. There is always a reason not to torture; and yet sometimes one must torture—just as, there is always a reason not to kill the innocent, and yet, sometimes, one must kill the innocent (e.g., to defend one's family or home from an innocent threat).
I’m rejecting "no exceptions" absolutism while embracing "always a reason" absolutism. And my thesis is that this is not an inconsistent position. It is a coherent position.

Bauer wins in Federal Court

Late in 1996, our then-corrupt union (in the South Orange County Community College District—SOCCCD) achieved the election of a "friendly" trustee, whereupon it "controlled" 4 of the 7 trustees on our board. Things quickly went downhill.

By 1998, I had published a district/college newsletter (Dissent) for over a year. It had been critical of the SOCCCD administration and board.

Late in ’98, a week or so after an opinion piece of mine ran in the Orange County Register, I was informed by the district Chancellor, Cedric Sampson, that, in publishing Dissent, I had violated the district’s “workplace violence” and “anti-discrimination” policies. (I was ordered to seek anger management counseling.)

The claims were absurd. I took the district to court. (My lawyer: 1st Amendment attorney Carol Sobel of Santa Monica.) The first judge pronounced the district’s actions against me to be “Orwellian.”

Finally, late in 1999, the matter came to Judge Feess:

Roy Bauer wins his 1st Amendment lawsuit against the South Orange County Community College District, 10/25/99

ADDENDUM: JUDGE FEESS’ REMARKS, OCT. 25, 1999

[ABRIDGED VERSION:]

UNITED STATES OF AMERICACENTRAL DISTRICT OF CALIFORNIATHE HON. GARY ALLEN FEESS, JUDGE PRESIDING

THE COURT: All right. I have issued a tentative, which I take it that you folks have seen.

MR. LARSEN: Yes, Your Honor.

MS. SOBEL: Yes, Your Honor.

THE COURT: All right. I don't know that if—that given Judge Manella's decision in the preliminary injunction, my view of the case is essentially the same as hers. On reviewing the record this morning, I do have one issue in my mind that I am somewhat doubtful about upon reflection and that is the antidiscrimination policy.In re-reading it today, I don't think it's unconstitutional on its face. I think the antidiscrimination policy doesn't give any indication on its face that it would be used for any improper purpose. I believe that it was used for an improper purpose in this case and that is to stifle dissent. But I don’t think on its face it necessarily reflects that it would ordinarily be served for an improper purpose.As to the other one [i.e., the “workplace violence” policy], I think it is quite vague and ambiguous and covers a lot of territory which is squarely protected speech. [Hence it is unconstitutional on its face.] So that's my view. Judge Manella did not reach either one of these. I indicated I was reaching both of them and I do intend to reach both of them, but, upon reflection, I don't think 4000.5 on its face is violative.All right. Now, counsel, Mr. Larsen, do you want to be heard?

MR. LARSEN: Yes, Your Honor. I would like to address my remarks, however, to all aspects of the tentative ruling, if I may do that.

THE COURT: Sure.

MR. LARSEN: …If you take the factors the court recognized in Rendish as to what could cause the speech to be subject to action by the employer and you apply it to this case, I think you have significant factual issues that the district is entitled to have heard by a trier of fact.

THE COURT: Well, I don't see it. I don't think that the factual record is terribly in dispute and, as I've noted, you try to add in a lot of information after the fact to sort of build up the record, but the bottom line is that he was going to be disciplined for what he wrote and what he illustrated. Or if he wasn't writing it, it was what he was editing and what was in that publication.That publication strikes me as being so plainly protected under the First Amendment that it's hard for me to understand what the administration was thinking when they decided to make a public fight over this issue. I mean, I don't see—I just can't see what the fact disputes are. Now that the facts are all out there, I mean, who did what is known, the question is: what's the legal consequence?

MR. LARSEN: Well, Your Honor, I think that you have to put that into context…You have to recognize that these statements on the part of [Professor Bauer] had a definite and debilitating impact on the organization, the organization building the function. For example, in 1997, November of 1997, the president specifically directed this employee to assist and participate in creating a positive environment on the campus. [Mathur, violating the faculty contract, inserted those remarks in an otherwise glowing teaching evaluation of Bauer.] He has violated that directive and, as a result of these publications, has seriously undermined the accreditation of the organization itself. In other words, if you look at Rendish, you look according to Brewster, and you look at what they looked at, you see that not only one looks to the speech but the impact of the speech. And the impact of the speech in this case, we think we've shown a significant factual record to suggest that the impact of this has been clearly disruptive of the organization. You have people that have stated they're unwilling to get involved—

THE COURT: You're talking about the speech which is in the written material.

THE COURT: And is that because she thinks that he's got a crane that he's going to take this so-called granite slab with the lift on it and actually use it? Or is it because she thinks she's going to be criticized?

MR. LARSEN: You know, I think it's because, Your Honor, she feels physically threatened for her safety. Now, the crane—

THE COURT: Wait a minute. Wait, wait, wait. If she feels physically threatened for her safety as a result of what's in this writing, aren't we saying what we're going to do is to take the most sensitive, the most fearful, most concerned person's standard—not a reasonable person's standard but the standard of the person who's most sensitive—and say, "Well, if you offend somebody and their sensitivities and they are fearful, whether or not the speech meets the threat for standard [sic] under the jurisprudence of the First Amendment,[“] that we therefore can muzzle the speaker?

MR. LARSEN: Well, Your Honor, I submit to you that, in the Lovell case down in Poway, when that student threatened the counselor, she did not have a gun on her, she did not have any way of immediately carrying out that threat.

THE COURT: That was face to face, wasn't it?

MR. LARSEN: That was face to face.

THE COURT: A face-to-face threat, not a written publication discussing issues of public concern.

MR. LARSEN: But this is an individual who has been involved in face-to-face threats. The written publications are merely an extension of those face-to-face threats.

THE COURT: That was never a basis which was given in 1998 and that is an after-the-fact attempt to shore up what was a plainly inadequate basis for the discipline.

MR. LARSEN: Your Honor, I think that—

THE COURT: But I think even if you take into account this so-called threat that "You're going down"—which is kind of street talk for meaning: when this administration fails, you're going with it—now, I don't think anybody necessarily would interpret, under the circumstances that they may reasonably interpret "you're going down" to mean, that Mr. Bauer was going to engage in violence.Do you have some evidence that Mr. Bauer actually, in fact, on any occasion has assaulted anyone?

MR. LARSEN: You know, I think we submitted in declarations incidents which were fairly close. [He once told someone:] "You fucking asshole." Violent in other people's face. [This is a reference to an incident, described in a declaration by Ken Woodward, in which Bauer, upon being treated to one of Woodward’s infantile needlings, muttered, “You fucking asshole,” as he walked away.]

THE COURT: Oh, you—

MR. LARSEN: I mean, those are all—

THE COURT: Well, "You fucking asshole," if that's an assault, then the courts of the state system would be filled to overflowing for that…I've actually even heard that in the courtroom directed at somebody in a black robe.

MR. LARSEN: But, Your Honor, you have a number of individuals who have all indicated that, as a result of these statements, it impaired their ability to effectively function. So we don't just have Sherry Miller-White, but we have those against whom it was directed. We have a genuine concern.I think that's a factual issue that needs to be put before a trier of fact so that they can weigh whether or not these people acted in a reasonable fashion, not determining as a matter of law that these people have not been reasonable. I think, given the number of people, I think given the specificities of their statements, the nature of their concerns, the context of those statements, the fact that the university or the college that needs to have the ability to manage itself in light of the threats to its accreditation, and the fact that these contribute to that fact—these are a clear insubordinate violation of a direction that was given in evaluation by the president and an attack upon the president—

THE COURT: You mean a direction of, you know, "Make things nicer"? "Make this atmosphere more harmonious"? Is that the directive that you're talking about?

MR. LARSEN: That's [it] in essence. The directive was to cease being negative and destroying the organization itself through negative comments and the very types of comments that exist here….

THE COURT: Maybe [that directive is] a First Amendment violation in and of itself, to tell [that to] a tenured professor of the college. I mean, look, this is a college campus. If people can't speak their minds on college campuses, I don't know where they can speak their minds. It is supposed to be the bastion of free speech and discussion.Here you are attempting, and the admin—not you personally, but your client—attempts to portray the problems that exist on that campus as problems which can be funneled through their lens and laid right at Mr. Bauer's doorstep, when the record plainly won't admit of that.This is a community that has all sorts of disruptions for all sorts of reasons and Mr. Bauer may not be behaving in the most civil fashion. He may be making jokes that some people might characterize as adolescent or whatever [Huh?], but it doesn't seem to me that that's the sort of thing that he ought to be disciplined for, especially in this context. That's what's troubling to me.

MR. LARSEN: Your Honor, I think what is difficult for me to understand is, in picking up on your own word the "context," we're attempting to bring out to the court the broader basis of this context to help the court understand this is very disruptive and very debilitating.Obviously on a summary motion, that is difficult to do when we think we raised significant issues as to what this context is. And I think that taking inferences, I think one could conclude that, given this context, this speech has been very, very disruptive to this organization to the point of impairing its ability to function. I think we can demonstrate that in a trial. I think that's what a trial in this case would be about. I think that the context is very, very important. I think the disruption is there. I think that to characterize the fears of the individuals as "beyond the pale of reason," which I think this court must do to grant a summary judgment, doesn't recognize the significance of the information that's before the court.

THE COURT: No. Well, if—if what you're talking about now is what's in writing, then, yes, it's beyond reason as a matter of law in my opinion.

MR. LARSEN: Well, you know, I just think that we obviously differ. We feel like the context is important to have, and that context creates a different result.

THE COURT: Well, all right.Mr. Larsen, I certainly understand the unhappiness with Mr. Bauer. The problem is it just seems to me that that unhappiness is not something that translates into a muzzle. But let me—I want to ask Ms. Sobel some questions here about this. [Things are] obviously going your way to a great extent, but Mr. Larsen raises a point which I think is legitimate, and I want to hear what you have to say about it, and that is that there does become a point where disruption is such—and the Supreme Court and the Ninth Circuit have recognized that this is a balancing test.What about the idea that maybe this is something that a jury should decide; that I should not be determining at this point?How do you address that and how do you address the concerns that the college has with respect to the disruption issue?

MS. SOBEL: Well, Your Honor, first of all, I think that Your Honor's assessment of the evidence in this case is correct. There is no evidence of disruption at this point. To the extent that they have—and as Judge Manella found on ruling on the preliminary injunction, there was no evidence of disruption at that point and—

THE COURT: Well, let me interrupt you for a minute, so I make sure I understand what you're saying. And maybe we've been using language a little too loosely here. Maybe I have been.I've been thinking—when I was [saying] disruption I think I was thinking turmoil. Turmoil and disruption are not necessarily the same thing. An institution can have turmoil, meaning people are running around concerned about issues, there can be vigorous debate, acrimonious debate. The question for disruption, however, is: does [the institution] continue to operate and function? Are people still going to classes? Are classes still being held and so forth?Is that what you mean by disruption, or are you talking about something else?

MS. SOBEL: I think that's what the Ninth Circuit means by disruption in this circumstance, Your Honor. That when you have public employees who are commenting upon matters of public concern—which is all that Professor Bauer does in this instance—he reprints articles in the Orange County Weekly and the L.A. Times and all the others, goes to board meetings, reports what's in those board meetings, other members of the community also contribute articles, they comment upon union activities. It is unpleasant and it may distract people from what they're doing because they don't like to be criticized. But that can't bootstrap into the kind of disruption that is prohibitable under the First Amendment, when you're talking about public employee speech. That's all they've shown here.Their supplemental declarations all came from these people who are the president of the union, the vice president of the union. The college can't punish Professor Bauer, even assuming what they were saying were true. Chancellor Sampson can't impose discipline on Professor Bauer for engaging in a colloquy with his union colleagues that they don't like, that the union officials don't like, and question their activities. Because then the college would run afoul, as we said, of the Labor Management Relations Act, which gives them the right to criticize them.And that's all they've shown here: that the union people don't want to be involved in union activity. I don't believe that is true but it's irrelevant, anyway, because it isn't the operation of the college. And in this instance, they really have presented to the court absolutely not a scintilla of evidence that there is disruption. They have attempted to recharacterize the accreditation issue as something caused …solely or primarily…[by] Professor Bauer when, in fact, the accreditation report that is submitted to the court clearly states: This has been an on-going process since the mid 90's.[There are] a lot of the factions, a lot of issues. The board of trustees, the administration, a whole variety of issues. So to blame Professor Bauer for causing the accreditation problem because he reports on the accreditation problem is really a logical fault that can't be overcome by the defendants in this case.So I think that there may be a point at which disruption from the public employee's speech on matters of public concern could be restricted. But they don't want to hear that.

THE COURT: …The cases definitely say that it is a possibility.I'm not sure that anybody understands exactly what the contours of that may be, but it seems to me that, you know, on one extreme you could have somebody leading sit-ins and blocking buildings and say "We're not going to allow this university to continue functioning.” In which case, I think you probably have speech which is going to come into conflict with operations, and you may very well be in a situation.But I tend to agree with you that discomfort from criticism isn't the sort of disruptions that is the kind of thing that will allow you to overcome the First Amendment protection.

MS. SOBEL: Well, I think it's precisely what the Ninth Circuit says is important in the George case and other cases which have upheld protection from employee speech and similar context. Because the Ninth Circuit operates—and the United States Supreme Court as well operates—under the premise: who is in the better position to expose hypocrisies or contradictions of positions taken by public officials than public employees, who are able to analyze that material and have more access.And, as the exhibits which we submitted indicate, this is a matter that has widespread interest in the entire Irvine community. This is not limited simply to this college. When one of the board of trustees…caused the Jewish Defense League to come in because of statements that were viewed as being anti-Semitic and brought in people who had ties with the Holocaust [revisionists], this was a much broader interest in the community than simply what went on in this college. [That was] one of the issues that Professor Bauer reported on.So I think that, clearly, wherever that line is between protected and unprotected public employee speech, in this instance, I don't believe we're anywhere near it…or that the court has to draw that line in this case, because Professor Bauer's writings and statements so clearly fall on the protected side of that line.…..MS. SOBEL: …If I could address…one issue in particular that the court raised. I want to see if I could convince the court to stay with the tentative on the unconstitutionality of the discrimination policy.At the outset of the court's statements, the court indicated that it could find no indication that the policy was intended to be used for an improper purpose. And although we did not address that in our briefings, I would ask the court to consider the decision in Simon & Shuster, which is cited in our papers for a different purpose…I am certain that the decision in Simon & Shuster contains a discussion of the very issues that the court has raised. And that's the Son of Sam case. And the Supreme Court in that instance says that they have never required a showing of an impermissible intent in order to find that a statute or regulation or an action by a government official violates the First Amendment.So I believe the precise language of the court is that intent, an impermissible intent, is not the sine qua non of a First Amendment violation.

THE COURT: All right. Again, maybe I wasn't as precise as I should have been in discussing this, but if I look at the policy itself on its face, [it] seems to address a matter of legitimate concern in a proper way. In that respect, it's no different than other policy/regulation/statute, what-have-you, which may prohibit certain conduct legitimately and which can illegitimately be used for purposes to, say, curb speech. In which case, the analysis that the courts have always gone through is to say, "We'll look at it as [unconstitutional as] applied and not necessarily on its face."And I'm just looking at the policy itself and trying to figure out as I read it again for the third or fourth time to see where in the policy is it that there is an impermissible objective separate and apart from the intent? Isn't the objective of the policy an appropriate one? And isn't the fact that it is such that it shouldn't be—shouldn’t be just stricken on its face as being vague or overbroad?

MS. SOBEL: Well, I believe the first question Your Honor asked is readily answered in the affirmative: Yes, the objective of the policy is a proper one. The next question then is: If it is a proper objective, if there is a legitimate substantial significant governmental interest, is the policy itself narrowly drawn to further that interest, and does it allow for ample alternatives of speech?…[W]hat you get to first is the narrow legality. That's where this particular policy fails. The terms of it are vague. It's fine to say, "We prohibit all discrimination and harassment." But as Your Honor knows, there is an extraordinary body of law now on what is prohibitive discrimination and harassment.An abundance of Supreme Court decisions, and the last Supreme Court decision, the Faragher decision and the Ellsworth and Burlington Industries decisions, all said that "We're not going to create a general civility code out there. We can't create a general civility code."

THE COURT: But this isn't like those cases. [The district’s antidiscrimination] policy is much shorter, it's much more focused. And, in fact, [it] appears to me to be completely inapplicable on the facts of this case. It seems to me to have been stretched and flip-flopped. I mean, this talks about people who are in positions of power—subordinates, students who are applying, disabled people who are seeking access—where someone who has the power is denying them of some right that they have by virtue of the power position that they've got. And here you have a situation where part of the discrimination—at least that's alleged—is that they say that Mr. Bauer's discriminating against the president…And it may very well be that Mr. Bauer—I mean, it's possible that he's making bigoted remarks. I'm not saying yes/no; he may be. Making a bigoted remark isn't discrimination necessarily. Or even harassment. Especially from a subordinate to a superior.

MS. SOBEL: The other thing this policy was used for, Your Honor, was to say that he was creating a hostile work environment for people of the "Christian religious experience,” whatever that may be. The problem with the policy—Your Honor is correct—[is that] it is short. And Your Honor is correct, the objective of it is a good one and a proper one. But what is lacking in this policy, what is woefully lacking in this policy, is any expansion, any regulations, anything that would tell the person sitting down to use this policy how and where to apply it—in what circumstances…You know, what did somebody have to have as a complaint of discrimination before this policy becomes applicable.And that's exactly what the court looked at in the Dambrot decision which we cited to the court when it struck down the University of Michigan policy or the Central Michigan University policy. There was no indication there that the discrimination had to be intentional. It reached unintentional acts. We don't punish speech that is unintentional in this context necessarily.There was no mechanism by which to enforce the policy. Whoever was in charge of enforcing it on that day got to enforce it as he or she wanted to.There is a total unrestricted delegation of power in this policy. And those are the hallmarks of a regulation that violates the First Amendment on vagueness grounds. And it is overbroad because it fails to distinguish between discrimination that is not punishable under Title 7 or the First Amendment and other speech that might be offensive to somebody on the basis of their race or their natural origin or their gender, or any of the prohibitive categories here, but still is not punishable.And so that is the failure of this policy. And it is a classic First Amendment failure for the same reasons that the court finds the workplace violence policy vague and overbroad, we believe it should find the discrimination policy vague and overbroad as well.

THE COURT: Well, the interesting difference between the policies is that the discrimination harassment policy is short, focused, to the point, and contains legal references so that a person who was applying [it] also has some reference to legal sources that they could go to to assist them in determining how to interpret it.

MS. SOBEL: But that's only one question. The other question is how does a person who is potentially subject to this policy know what is prohibited? Are they required to go to all of those legal resources first and try to figure out what current case law is? I doubt that, Your Honor. Particularly because it's a group of students.And I would cite to Your Honor a case that I do not have the drop cite for but this issue was discussed by the Ninth Circuit in a case called United States versus Wunsch, 84 F.3rd 1110, and it's a Ninth Circuit 1995 decision, and that was a challenge to a statute in the state bar that—and a disciplinary action. I was counsel for the attorney in that case.But the issue was that the state bar came in and said, "Look, any reasonable attorney is going to know what is prohibitive conduct under this statute because they read the case law, they know the decisions, it's out there." And the Ninth Circuit said, "No, we don't—we don't require everybody to know every case in order to figure out what is prohibited.” If you write a regulation and it's short and sweet and to the point, it is still unconstitutional if it requires people to go to some secondary source to try to figure out what's going to get them in trouble.

THE COURT: Well, all right. I understand your point. I think it's an argument that may prove too much. I mean, I think there's so many regulations that exist. I mean, the world is full of regulations that are—I don't know.

MS. SOBEL: I just haven't challenged those yet.…..THE COURT: Well, and you're not going to be able to challenge them all because there's no way—your argument…in some way it's a very old fashioned argument. That language can be necessarily made extremely clear and that it's never a problem. If you really want to work hard enough at it, you can make your regulation so specific and so clear that no one would have any doubt as to what is involved. And I just don't think [that’s possible].I've heard all I want to hear about that, Ms. Sobel.…..MS. SOBEL: Thank you, Your Honor.

THE COURT: Mr. Larsen, do you have anything you want to say in reply? Briefly.

MR. LARSEN: Yes, Your Honor. I would like to first off indicate that I think the declarations have substantiated that fact that people are not participating in management meetings because of this particular speech…what you really have here now is something much more effective than a sit-in. If you use fear in keeping people from coming and being there through a form of intimidation, you don't need a sit-in.

THE COURT: Well, if people don't want to come because when they come and speak, they're going to be criticized, so be it. That is not a basis for keeping somebody quiet. I understand that a lot of people would like to do business behind closed doors, that they would like to make decisions that they don't have to explain, that they would like to come to conclusions and judgments and issue policy without having anyone present to listen and hear and to understand and therefore to make rational, powerful, criticisms of them.That's just too bad under our system. You cannot avoid that, that consequence.And if people are afraid of going to meetings and speaking up because what's going to happen is that they're going to be the subject of criticism in a publication, that's…just life under the First Amendment, as far as I can see.And the Brown Act, by the way—which, of course, is involved here underlined in these lawsuits—exists just because of the issues that we're talking about here. And that is so that the basis for public decisions and law making—by law makers and other public figures who are deciding important issues will be known. It's the Sunshine law. --So people will understand that.And aren't you saying that—I mean, are you not saying that what Mr. Bauer has done is to cause people to not want to go to these meetings for just that reason?

MR. LARSEN: No, Your Honor, we're not.Let me explain that…If that was what we were saying, we would have taken some kind of action much earlier than we ever did with respect to a [newsletter] which had existed for a year and a half without physical threat of violence and which continues to publish—and you have that in the record before you—which is very negative and critical and whatnot.No, what we're saying is when we took action before, there were threats of physical violence that made people feel like they did not want to participate out of fear for their personal, physical safety…Now with respect to the policies themselves, you've had a great deal of argument. The discrimination policy is short and sweet in the vernacular…Mr. Bauer in his testimony indicated that he understood from a common sense point of view what was prescribed….As to the [workplace] violence policy, I submit to you that that policy does have a legitimate purpose. It is a necessary policy in today's work place. And that it has been narrowly tailored with a lot of specific indices that are based on the industry standard….We live in a place—in a climate, unfortunately, in the education climate, where violence is all too prevalent; where fear does now exist both on the part of those that are doing the employing and those who participate. We live in a community, unfortunately—Orange County—where we're “going [postal].” It's a very significant remark and, in fact, [first] occurred within the confines of the jurisdiction of this organization….

THE COURT: Does that mean that those words should never be spoken?…

MR. LARSEN: Those words should not be spoken by an employee about his immediate supervisor.

THE COURT: That is not the exact context. I've got the exact context.…I've got the document in front of me. I've read the document and it is referring to a past event in the context of criticizing the self-congratulatory nature of the discussions at that time and saying that "No reasonable person under those circumstances could have resisted going [postal]." That's what it says.

MR. LARSEN: And those are circumstances which this author anticipated, in fact, did exist. Whether they existed in reality or not. If they existed, it was in his reality that he becomes a danger.

THE COURT: Well, all right. I understand the point, I just don't agree with you.And I'm not going to argue with you about the importance of considerations on workplace violence. That goes without saying. I just think this is a case where that concept, a legitimate concept, is being stretched for the purpose of taking a vigorous critic of the administration and the board of trustees and trying to keep them quiet. That is how this case hits me.

MR. LARSEN: That would be the policy of the applied, Your Honor, not the policy on its face.

THE COURT: Well, the "policy on its face," when you say that it includes "written materials which have violent behavior overtones," I have no idea what that means and I don't think anybody could reasonably be expected to understand what that means.That is—as far as I'm concerned, that is an open invitation to someone to take statements of the sort that were made in this case, pull them out of context and say, "Therefore we’re disciplining you." And that's what I think is wrong with that policy.…..All right. I think that the record is quite clear. Mr. Larsen has vigorously advocated his position to me and I disagreed on the legal position here and I don't know where this case is going next; I have a pretty good idea. And maybe Mr. Larsen will get an opportunity to come back and say, "I told you so, judge," I don't know. That's an entirely possible situation.But at this point the court's tentative is going to become its final. I am going to write a memorandum opinion on the case...All right.

MR. LARSEN: Does that apply to the policy on the harassment discrimination also?

THE COURT: I am going to take a look at the cases on that. I'm not terribly convinced by Ms. Sobel's argument that it's invalid on its face. But I will look at the case law and see what I think about that. Right now my tentative would be to grant on One, Two, Three and Five, on the grounds that the receipt of the policy as applied by the First Amendment, that the work place violence policy on its face is violative of the First Amendment, but not on the basis that the discrimination policy violates the First Amendment on its face. But I'm going to look at the case law and see—see if Ms. Sobel's argument is more convincing in light of those cases. But I'm not terribly convinced on that. All right?